According
to seemingly reliable reports in the media, President Trump may have determined
that his Administration will not conduct a criminal investigation of Hillary
Clinton (and presumably of the Clinton Foundation and those associated
with it as well).

The
reasons that were bruted for this decision prior to Mr. Trump’s
inauguration should give one pause. First, various pundits contended
that investigation of Mrs. Clinton would run afoul of some supposed “political
tradition” in this country which discountenances prosecution of
the loser of an election by the winner—when in fact Mrs. Clinton
would be investigated, not because she lost the Presidential election,
or even because of her dangerously aberrant political views, but instead
because she has allegedly engaged in serious misbehavior, quite unconnected
to the election, for which any other such perpetrator would surely be
prosecuted sine die. Second, one of Mr. Trump’s aides mouthed
the psychobabble that foregoing prosecution of Mrs. Clinton could “help
her heal”—when “escape” would be the more accurate
verb. Third, Mr. Trump himself announced: (i) that “I don’t
think we have to delve back in the past”—notwithstanding that
every criminal investigation does so; (ii) that prosecution of
Mrs. Clinton “would be very, very divisive for the country”—as
if affording her immunity from prosecution would not be; and (iii) that
“I don’t want to hurt them [i.e., the Clintons]...they’re
good people”—leaving to worrisome conjecture what Mr. Trump’s
definition of “good people” might be. And most recently, when
asked by a reporter whether no further investigations of Mrs. Clinton
would be conducted, President Trump responded, “I certainly hope
so”.

The
most obviously justified criticism of Mr. Trump’s apparent willingness
to allow Mrs. Clinton and others associated with her “to skate”,
unscathed by honest and competent inquiries into their shadowy dealings,
is that it proves once again how in the contemporary United States one
body of law (or absence of law) specially privileges and protects the
super-rich, the politically well-connected, and other big wheels,
top noises, and string-pullers, while a quite different body of law bears
down on everyone else. Any constitutionalist should be concerned, though,
that something far more serious is involved here.

Article
II, Section 1, Clause 7 of the Constitution provides that “[b]efore
he [i.e., the President-elect] enter on the Execution of his
Office, he shall take the following Oath or Affirmation:—‘I
do solemnly swear (or affirm) that I will faithfully execute the Office
of President of the United States, and will to the best of my Ability,
preserve, protect and defend the Constitution of the United States.’”
The text of this “Oath or Affirmation”sets out, not a possibly
inaccurate prediction cast in terms of the simple futurity of temporal
sequence (“I shall”), but instead a strict promise
of fidelity cast in terms of the emphatic futurity of a solemn assurance
(“I will”). Moreover, “taking the * * * Oath
or Affirmation” is the condition precedent sine qua non
to “enter[ing] on the Execution of [the] Office [of President]”.
Self-evidently, if it is not “take[n]” at all, a President-elect
cannot “enter on the Execution of [that] Office”. No less
plain is that a President-elect cannot “enter on the Execution of
[that] Office” if he “take[s] the * * * Oath or Affirmation”
falsely. For a false “Oath or Affirmation” is, by
definition, fraudulent. And fraud vitiates and renders inoperative any
and every act which it has facilitated. To be sure, the falsity of a representation
as to the “Oath or Affirmation” might not be evident when
it was uttered, because a rogue President-elect would be careful to engage
in fraudulent concealment of his true state of mind when he deceitfully
“t[ook] the * * * Oath or Affirmation”. That, however, is
not the situation here.

Article
II, Section 3 of the Constitution sets forth the chief duty of the President,
that “he shall take Care that the Laws be faithfully executed”.
Observe that the phrase “faithfully executed” in this provision
echoes the phrase “faithfully execute” in the “Oath
or Affirmation”. Thus, his “Oath or Affirmation” requires
the President, “to the best of [his] Ability, to preserve, protect
and defend the Constitution” by fulfilling the duty to “take
Care that the Laws be faithfully executed”, without any exception
(because the Constitution allows for none).

It requires
no extended argument to establish that, now installed in “the Office
of President”, Mr. Trump disposes of every right and power necessary,
sufficient, and convenient to ensure that “the Laws [shall] be faithfully
executed” with respect to Mrs. Clinton and her associates. And no
airy notion that she were in some sense and to some degree a “good
person” could relieve Mr. Trump of the duty “faithfully [to]
execute[ ]” “the Laws” as to her. (Indeed, as a “good
person”, Mrs. Clinton herself should welcome the opportunity in
an official forum to be absolved of the malodorous charges her record
of “public service” seems to substantiate in many Americans’
estimation.)

To be
sure, as is every American, Mrs. Clinton and her associates are entitled
to the presumption of innocence. But, based upon what is already known
about their behavior, this country is entitled to see them properly investigated,
indicted, and prosecuted, in order to test that presumption in the crucible
of a public trial, before a jury of their peers, pursuant to Article II,
Section 2, Clause 3 and Amendments Five and Six of the Constitution surely,
and Article III, Clause 1 possibly. Mr. Trump has, however, left the world
with the distinct impression that he does not intend to press for investigations
into Mrs. Clinton’s questionable affairs. As a matter of constitutional
law (as well as common sense), the reasons he has advanced for this disinclination
are unconvincing, if not patently specious. Therefore, if before his inauguration
he actually did not, and following his inauguration still does not, intend
under color of “the Office of President” to “take Care
that the [applicable] Laws be faithfully executed” as to her, then
he did not “take the * * * Oath or Affirmation” truthfully—and
as a result did not “enter on the Execution of [the] Office [of
President]” at all. If so, America finds herself confronted with
yet another Presidency constitutionally questionable from its supposed
inception.

Admittedly,
this concern rests upon something of a fine legal point—although
not one so fine as to be indiscernible on the face of the Constitution.
In any event, the Constitution is festooned with fine points intended
to impede and even impale rogue public officials in their malicious course.
These points can serve their purposes, however, only if they are forcefully
driven home, without any compunction, whenever suitable occasions arise.
Few crimes are worse than the systematic prostitution, perversion, and
betrayal of public office for private political and financial gain. But
surely one of them is for someone to attempt to “enter on the Execution
of [the] Office [of President]” knowingly and willfully intent upon
allowing anyone who has notoriously engaged in such misbehavior to escape
punishment.

Unfortunately,
the running of various statutes of limitations might preclude prosecution
of Mrs. Clinton and her associates with respect to some of their alleged
misbehavior—although statutes of limitations can be removed or extended
by legislation. See, e.g., Chase Securities Corporation v. Donaldson,
325 U.S. 304 (1945); Campbell v. Holt, 115 U.S. 620 (1885). Where
statutes of limitations would impose a bar, though, it would still behoove
the Trump Administration to investigate these matters thoroughly and report
its findings completely to the public. See Lee Duigon’s
recent NewsWithViews commentary “A
Speech Mr. Trump Ought To Make” (17 November 2016).

As a
complicating factor, it is not inconceivable that Mr. Trump might seek
to finesse this apparently distasteful political situation in a legalistic
fashion by purporting to extend some sort of blanket “pardon”
to Mrs. Clinton and her associates. Any such “pardon” which
issued before indictments had specified the crimes the members of the
Clinton cabal had allegedly committed would be constitutionally problematic,
however.

The
nature and extent of the “Power” of the President under Article
II, Section 2, Clause 1 of the Constitution “to grant Reprieves
and Pardons for Offences against the United States, except in Cases of
Impeachment” is not defined in the Constitution—and therefore
the specifics as to those matters must be derived from the similar power
of the King in pre-constitutional Anglo-American law. “As
this power has been exercised, from time immemorial, by the executive
of that nation whose language is our language, and to whose judicial institutions
ours bear a close relationship; we adopt their principles respecting the
operation and effect of a pardon”. United States v. Wilson,
32 U.S. (7 Peters) 150, 160 (1833). Under the laws of England applicable
to the Colonies prior to the Declaration of Independence—

*
* * What is required to make a good Pardon of Felony in general: It
seems to be laid down as a general Rule in many Books, that where-ever
it may be reasonably intended that the King, when he granted such Pardon,
was not fully apprised both of the Heinousness of the Crime, and also
how far the Party stands convicted thereof upon Record, the Pardon is
void, as being gained by Imposition upon the King. * * *
* * * It hath been holden, That anciently a Pardon of all Felonies,
included all Treasons, as well as Felonies whatsoever, and might be
pleaded to an Indictment for them: And it seems to be taken for granted,
in many Books, that a Pardon of all Felonies in general, without describing
any one particular Felony, may even at this Day, if the Party be neither
attainted nor indicted, be pleaded in Bar of any Felony whatsoever,
coming within the general Limitations of the Pardon, except Murder or
Rape, and that the only Reason why it cannot also be pleaded to Murder
of Rape, is because [a] Statute * * * requires an express Mention of
them. But I find this point no where solemnly debated; neither doth
it seem easy to reconcile it with the general Rules concerning Pardons,
agreed to be good in other Cases; for if a Felony cannot be well pardoned
where it may be reasonably intended that the King, when he granted the
Pardon was not fully apprised of the State of the Case, much less doth
it seem reasonable that it should be pardoned where it may well be intended
that he was not apprised of it at all. And if a Felony whereof a Person
be attainted cannot be well pardoned, even tho’ it appear that
the King was informed of all the Circumstances of the Fact, unless it
also appear that he was informed of the Attainder, mu ch less doth it
seem reasonable that a Felony should be well pardoned where it doth
not appear that he knew any Thing of it: For by this Means, where the
King in Truth intends only to pardon one Felony, which may be very proper
for his Mercy, he may by Consequence pardon the greatest Number of the
most heinous Crimes, the least of which, had he been apprised of it,
he would not have pardoned. And for these Reasons, as I suppose, general
Pardons are commonly made by Act of Parliament; and have been of late
Years very rarely granted by the Crown, without a particular Description
of the Offence intended to be pardoned. * * * And therefore where the
Books speak of Pardons of all Felonies in general as good, perhaps it
may be reasonable for the most part to intend that they either speak
of a Pardon by Parliament, or that they suppose that the particular
Crime is mentioned in the Pardon, tho’ they do not express it.

William
Hawkins, A Treatise of The Pleas of the Crown (London, England:
E. and R. Nutt, and R. Gosling, Third Edition, 1739), Book II, Chapter
37, §§ 8 and 9, at 382-384 (marginal notes omitted). It should
be kept in mind that, in contradistinction to Parliament, Congress has
no power to issue “general Pardons” (or even any “Pardon”
whatsoever), or to delegate such a nonexistent power to the President.

So,
inasmuch as the details of much of Mrs. Clinton’s own alleged wrongdoing,
let alone the suspected wrongdoing of numerous others associated with
her, will remain shrouded in mystery until proper investigations have
been conducted, it passes understanding how Mr. Trump could, with constitutional
propriety, issue “general Pardons” to any members of the Clinton
cabal.

To be
sure, some decisions of the Supreme Court have seemingly expanded the
Presidential “Power to grant Reprieves and Pardons” beyond
the boundaries outlined above. The mere existence of such decisions, though,
poses no insurmountable bar to the analysis presented here. For a decision
of the Supreme Court on a point of constitutional law is not necessarily
valid simply because the Court has handed it down. First, as
was self-evident in principle well before the Constitution was even first
imagined, “the law, and the opinion of the judge
are not always convertible terms, or one and the same thing; since it
sometimes may happen that the judge will mistake the law”. William
Blackstone, Commentaries on the Laws of England (Philadelphia,
Pennsylvania: American Edition, Robert Bell, 1771), Volume 1, at 71. Second,
in practice under the Constitution the Supreme Court itself has admitted
that it has often erred in its constructions of that document. See
Payne v. Tennessee, 501 U.S. 808, 828-830 & note 1 (1991).

Therefore,
no decision of the Supreme Court can be taken at face value as an infallible
authority as to what the Constitution means.

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Rather,
the Constitution determines whether a decision of the Supreme Court is
correct or incorrect. And in the final analysis only WE THE PEOPLE can
render the Constitution’s meaning certain, because WE THE PEOPLE
“ordain[ed] and establish[ed] th[e] Constitution” in the first
place; and (as the Supreme Court itself has admitted) “[t]he power
to enact carries with it final authority to declare the meaning of the
legislation”. Compare the Preamble to the Constitution with
Propper v. Clark, 337 U.S. 472, 484 (1949). For part two click below.

Edwin Vieira, Jr., holds four
degrees from Harvard: A.B. (Harvard College), A.M. and Ph.D. (Harvard
Graduate School of Arts and Sciences), and J.D. (Harvard Law School).

For more than thirty years he
has practiced law, with emphasis on constitutional issues. In the Supreme
Court of the United States he successfully argued or briefed the cases
leading to the landmark decisions Abood v. Detroit Board of Education,
Chicago Teachers Union v. Hudson, and Communications Workers of America
v. Beck, which established constitutional and statutory limitations
on the uses to which labor unions, in both the private and the public
sectors, may apply fees extracted from nonunion workers as a condition
of their employment.

He has written numerous monographs
and articles in scholarly journals, and lectured throughout the county.
His most recent work on money and banking is the two-volume Pieces
of Eight: The Monetary Powers and Disabilities of the United States
Constitution (2002), the most comprehensive study in existence of American
monetary law and history viewed from a constitutional perspective. www.piecesofeight.us

He is also the co-author (under
a nom de plume) of the political novel CRA$HMAKER:
A Federal Affaire (2000), a not-so-fictional story of an engineered
crash of the Federal Reserve System, and the political upheaval it causes.
www.crashmaker.com

Even
though an incorrect decision may be the so-called “law of the case”
as to the parties actually before the Supreme Court in a particular instance
(and unchallengeable by them because no means of appeal is available),
it can never constitute infallible legal dogma as to everyone else in
all future instances.